Tentative Sanctions Against Translator in Toyota Probes

A federal judge has tentatively sanctioned a former translator and subcontractor for Toyota who posted dozens of confidential documents relating to its sudden-acceleration recalls on her blog.

At the same time, the judge rejected repeated attempts by Toyota attorney Lisa Gilford to extend the sanctions order as to hundreds of other documents against translator Betsy Benjaminson, a self-described whistleblower.

At a hearing on Wednesday, U.S. District Judge James Selna of the Central District of California found that most of the documents that Toyota sought to include as part of the sanction were “simply not covered by the contempt order” because Benjaminson hadn’t yet signed a protective order designating them confidential at the time she obtained them.

Benjaminson, who was a subcontractor for Toyota assigned to translate documents from Japanese to English amid probes over sudden-acceleration recalls, later worked for plaintiffs attorneys in the litigation. She has provided internal Toyota documents to various news organizations and is writing a book about the sudden-acceleration recalls.

After she began posting thousands of internal documents on her blog this year, Toyota moved for sanctions, insisting that her actions violated the protective order, which she signed in 2012 while working for a translation services vendor for the plaintiffs.

At the end of the hearing, Gilford, a partner in the Los Angeles office of New York-based Skadden Arps, Slate, Meagher & Flom—who argued repeatedly that sanctions should be applied to all the documents since they were subject to the protective order—vowed that her client wouldn’t back down from forcing Benjaminson to return those materials.

“We definitely consider these documents here to be protected and will pursue additional remedies,” she said.

Toyota spokesman Scott Vazin declined to comment.

Benjaminson, who lives in Israel, did not appear for the hearing. Her attorney, Hemant (Shashi) Kewalramani, founding partner of Lee, Jorgensen, Pyle & Kewalramani in Tustin, Calif., said his client would comply with the court’s order but wanted to provide documents to the Department of Justice and an independent monitor overseeing its $1.2 billion deferred-prosecution agreementwith Toyota.

Selna appeared concerned about that request.

“I’m somewhat troubled when you said I want to leave a back door to do that,” he said. “It’s not a palatable position.”

Selna did not issue a final order, stating he planned to review his tentative decision “from top to bottom.”

Toyota, which recalled more than 10 million cars and trucks for faulty accelerator pedals and floor mats that it says caused cars to suddenly accelerate, has paid billions of dollars to resolve hundreds of consumer lawsuits, regulatory fines and the criminal investigation. But Toyota, which is in the process of settling lawsuits filed by people injured or killed in accidents, has never admitted that glitches in the electronic throttle control system of the vehicles caused the problems.

In pursuing sanctions against Benjaminson, Toyota was particularly incensed about a PowerPoint presentation prepared by a plaintiffs software expert that it claimed contained “highly confidential source code information.” Toyota considers its source code to be a trade secret, but plaintiffs attorneys have pushed for access to prove the software has bugs.

On Sept. 2, Selna ordered Benjaminson to show why she should not be sanctioned.

Benjaminson, who removed the contested materials from public view, hasinsisted she obtained most of the documents prior to signing the protective order when she worked for Toyota’s translation-services vendor, Linguistic Services Inc. At that time, she was translating for Toyota’s attorneys at Debevoise & Plimpton as part of the government’s criminal investigation.

In 2012, she began working for two plaintiffs’ translation-services vendors, American Language Services and Technovate Inc.

In his tentative order, Selna found that Benjaminson should be sanctioned as to 88 documents she obtained while working for those firms. But he found that documents Benjaminson translated for Debevoise & Plimpton were “simply not covered by the contempt order” because she hadn’t yet signed the protective order.

Gilford insisted that those documents also were produced in the multidistrict litigation and that Benjaminson had signed the protective order as of this year, when she began posting the documents on her blog.

“As of July of this year, she had all the information she needed to understand what was protected,” she said. “We believe that is enough to find her in contempt with regard to the body of documents.”

Wednesday, November 19, 2014

This is the Precaution Facebook page for all Australian Toyota drivers - just be wary that it can happen to anyone at anytime without warning. If you've had the same incident, please post!

Long Description

On the 30th August at 5.10pm on my way home from work I encountered a problem with my 2007 model Toyota Corolla. Whilst driving on the Cumberland Hwy (close to the intersection with Old Windsor Road, Northmead) I accelerated to merge into the left lane and found after releasing the accelerator pedal that my car was still accelerating with high REVS noise coming from the engine (as if I had just floored on the gas pedal and kept it there). I turned the corner at approximately 70km/hr and continued to try and stop or brake the car by putting my gear into park, reverse, neutral and even pulling up the handbrake and leaving it there. I drove up a hill and back down to the other side with the gear in parked and my handbrakes up with my foot slammed on the brake pedal (which only slowed the acceleration but did not stop the car). In the end I figured that the only way to stop the car was to turn off the engine to which my car skidded and steering wheel locked. Luckily at that time I had no car behind or in front of me or in the lane next to me to swerve into, however if any of you have been on Cumberland Hwy during peak hour, you would know that I was EXTREMELY lucky to drive through two traffic lights (green, thankfully) without hurting myself or anyone else on the road!

One week later and dozens of phone calls to Toyota to chase up the problem, they managed to get an inspector out and have concluded that my car is in perfect condition with no electrical or mechanical fault and that I'm silly stupid driver as the "Floor mats" must have gotten "caught" in between the pedal. However they will replace my acceleration pedal anyway just as a "precaution". The dealer ordered in the pedal yesterday and apparently it should've came today to fix up my car, however when it arrived, they realised that they had ordered the wrong one. Does anyone think this is ridiculous? A Toyota Dealership ordering the wrong pedal for a Toyota model car?!

So to sum up, I just wanted every Toyota driver (2007-2010) to keep my incident in the back of their mind and make sure that if it happens to you that you take the floor mat out and throw it out your car window, else you'd be too dead to argue the case with Toyota that it wasn't the floor mat!!!

Sunday, November 2, 2014

Safety agency is failing the public on air bags

A crash test of a 2003 Toyota Corolla, one of the models subject to a recall to repair faulty air bags. The National Highway Traffic Safety Administration is warning 7.8 million car owners that inflator mechanisms in the air bags can rupture, causing metal fragments to fly out when the bags are deployed Insurance Institute for Highway Safety

Jeff Gelles, Inquirer Business Columnist

Posted: Sunday, November 2, 2014, 1:09 AM

Is an auto-safety system reliant on manufacturers' recalls no more trustworthy, say, than an aging Takata air bag in a hot, humid climate?

That's how it looks to advocates like Clarence Ditlow, director of the Center for Auto Safety. Ironically, thanks to the failures of the system he criticizes, you may not realize just how perilous Takata air bags can be - even if you have one in your car.

As many as 30 million U.S. vehicles may be equipped with air bags whose deteriorating inflators could blow apart and send shards flying like shrapnel. But since Tokyo-based Takata says the risk is linked to hot, humid climates, fewer than 1 in 3 have been recalled.

To Ditlow, this is a flashing red light signaling an old problem: a safety system still broken 14 years after Congress supposedly fixed it with 2000's TREAD Act - passed after a furor over injuries and deaths blamed on Firestone tires with separating tread, many on Ford Explorer SUVs.

As with those tires and the rollover crashes they triggered, it took years for regulators to wake up to more recent hazards, such as faulty ignition switches that can turn GM cars into death traps if a key ring weighs too much.

Each delay likely leads to more injury and death. Yet the National Highway Traffic Safety Administration, charged with shepherding defect probes, at best seems underfinanced and overmatched by the auto industry. Ditlow sees a deeper issue, too. With a revolving door linking NHTSA to the industry, he says, it's become a classic "captive regulator," loyal more to the firms it oversees than to the customers it is supposed to protect.

For instance, the law requires automakers to report each death and injury that might be tied to a defective part. But instead of requiring documentation that could speed investigations, NHTSA accepts vague summaries.

"They have a category of 'air bag,' and now 60 percent of death and injury reports say 'air bag,' " Ditlow says. That can include air bags that fired when they shouldn't or didn't seem to deploy properly. The case of the Takata air bags is completely different: The hazard apparently arises when an inflator's casing rots so much that it flies apart when an air bag, as designed, fires with explosive force.

So far, Takata has confirmed two deaths, and two more are suspected. Three of those four are outside the recall zone. In one, Ditlow says, "investigators thought it was a homicide. They'd never seen such sharp-edged wounds."

One question, which arises in every big defect case, is how many deaths or serious injuries are buried by the civil-justice system. Victims and their families are pushed to sign nondisclosure orders in return for settlements. The money may cover the costs of treatment or ease the pain of a severe injury or family's loss. But the gag order likely means more future victims, because fewer people will hear of the hazard.

How do you know if you're at risk from the Takata defect? It's not easy - one reason about 30 percent of all recall repairs never get done. Last month, NHTSA published a list of 7.8 million vehicles affected - mostly older Hondas, but also from nine other automakers. You can find it at SaferCar.gov or call 888-327-4236.

If you search NHTSA's site by your vehicle's VIN number, the regionally limited recalls mean you may not learn you have a suspect air bag. And if you call a Philadelphia-area dealer, you'll get a response that varies by manufacturer, says one local service manager. Nissan has plenty of parts. Toyota won't have them until New Year's. Honda has some, but it's prioritizing places with persistent heat and humidity.

And if your Accord, say, spent most of its first 10 years at Mom and Dad's Florida retirement condo? Make noise, and ask for an exception. Or follow Toyota's advice: Avoid the front passenger seat until the repair is done.

Could the defect be tied to age rather than just climate, as Ditlow speculates? Could NHTSA do more, and quicker - such as use its power to speed replacement parts from third-party suppliers?
Yes, and yes. But nothing is likely to happen unless the agency gets a stronger directive, and more support, from Congress.

The Obama administration has ordered a review of the "safety culture" at NHTSA. That's a start. But the problem isn't just culture. The problem is a system that allows evidence of a defect to be buried along with its victims.

A translator who allegedly leaked confidential discovery documents from litigation against Toyota Motor Corp. says she should not be found in contempt because she has removed all those materials from the public view.

U.S. District Judge James Selna of the Central District of California has orderedBetsy Benjaminson, who lives in Israel and is a self-described whistleblower, to show cause why she should not be sanctioned.

Benjaminson's attorney argues that, while working for a translation service retained by plaintiffs’ counsel, she obtained 88 documents from the Toyota’s sudden-acceleration litigation. She said she got another 1,500 documents when translating for Toyota’s criminal counsel, Debevoise & Plimpton, during investigations by the U.S. government and various state attorneys general.

The criminal investigations were not within the scope of the protective order governing the civil cases in the multidistrict litigation, so Benjaminson could not have violated the protective order by taking documents related to them, Benjaminson’s counsel, H.H. Kewalramani of Lee, Jorgensen, Plye & Kewalramani, argued in a court document.

Moreover, Benjaminson had not signed the protective order while working for Debevoise & Plimpton’s translation vendor, her counsel added.

That leaves Toyota arguing for “retroactive applicability of the protective order and expansion of this court’s authority over all things related to Toyota sudden acceleration, whether part of this MDL or not,” Kewalramani argued.

Benjaminson worked for three translation services during the litigation, according to the response.

In a separate motion, plaintiffs’ counsel opposed Toyota’s ex parte application to have one of their experts comply with the car manufacturer’s discovery request in a bid to learn how documents got to Benjaminson.

Benjaminson had obtained a PowerPoint presentation prepared by Michael Barr, a plaintiffs expert witness who concluded that Toyota's source code was defective and led to unintended acceleration in a Toyota Camry. The expert presented the information during the first trial testing whether Toyota’s throttle-control systems caused vehicles to spontaneously accelerate.

According to Toyota’s court papers, Benjaminson obtained the source-code material from another plaintiffs expert, Antony Anderson, who got it from Barr’s Dropbox account.

The plaintiffs said Toyota was “trying to bully Michael Barr, the plaintiffs expert, and exert an asymmetrical pleading burden against counsel for plaintiffs and that expert.”

Wednesday, October 29, 2014

http://www.nytimes.com/2014/10/29/opinion/weak-oversight-deadly-cars.html?_r=0WHEN regulators sleep and auto companies place profits over safety, safety defects pile up. A record number of vehicles — more than 50 million — have been recalled this year, a result of congressional hearings and Justice Department prosecutions, which exposed a mass of deadly defects that the auto industry had concealed.

From the Ford Explorer rollovers in the 1990s and Toyotas’ issue with unintended acceleration in the 2000s to the recent fatal consequences of defective General Motors ignition switches and Takata airbags, the auto companies hid defects to avoid recalls and save money. These and other major defects were first exposed by safety advocates who petitioned the government and by reporters in the tradition of Bob Irvin of The Detroit News, who wrote over 35 articles on Chevrolet engine mounts until General Motors agreed to recall 6.7 million vehicles in 1971.

These campaigners did the job the regulator should have done. Congress gave the Department of Transportation authority to regulate the auto industry through the National Highway Traffic Safety Administration — including subpoena authority to find defects. But it used this authority so infrequently after the ’70s that its acting administrator, David J. Friedman, told Congress this year that he didn’t even know it had the power. The N.H.T.S.A. also failed to require companies to disclose death-claim records in civil lawsuits over the Toyota accelerations, G.M. ignition switches and Takata airbags.

In order to prevent the risk of death or serious injury, Congress empowered the agency to oblige auto companies to use alternate suppliers and independent repair shops to manufacture parts and make repairs to expedite a recall fix. Yet the N.H.T.S.A. has never used this authority — even though it took General Motors from February to October to get enough parts to dealers to repair all the recalled ignition switches.

Only after a lengthy delay was the agency prodded, in 2009, into opening an investigation into whether the first two Honda recalls of Takata airbags were adequate. Although the agency asked tough questions, it quickly closed the investigation after Takata hired a former senior N.H.T.S.A. official to represent the company. The agency’s attitude, in short, was: Don’t bother us with the facts.

More facts did come out when BMW, Honda, Nissan and Toyota recalled millions of Takata airbags from 2010 to 2013. Still, the N.H.T.S.A. opened no investigations and ordered no recalls on the airbags. Honda also failed to disclose death and injury claims on Takata airbags, as required by law. Even now — after reports of a third death in the United States associated with the airbags — the N.H.T.S.A. refuses to order a national recall, as Senators Richard Blumenthal of Connecticut and Edward Markey of Massachusetts have urged.

What explains this neglect? Over time, the N.H.T.S.A. has been captured by the industry it regulates. Through the ’70s, it aggressively litigated cases to force recalls, and it caught most defects early in the life of a vehicle. Beginning in the ’80s, however, numerous officials — including Diane K. Steed, Jerry Ralph Curry, Sue Bailey and David L. Strickland, who all served as head of the agency, and Erika Z. Jones, Jacqueline S. Glassman and Paul Jackson Rice, who all served as chief counsel to the agency — have gone on to become consultants, lawyers or expert witnesses for auto companies.

What’s more, the agency is heavily populated by former industry employees. Ms. Glassman, for example, had been a lawyer for Chrysler before working at the agency (and is now at a law firm that represents auto companies). The agency’s last non-acting administrator, Mr. Strickland, went to work in January of 2014 for a firm representing Chrysler — the same month the agency approved an inadequate recall of Chrysler Jeeps with fuel tanks liable to explode as a result of rear impacts.

Although Congress has given the N.H.T.S.A. regulatory tools that the agency failed to use, Congress has not given it the two things it needs most: sufficient funding, and the power to bring criminal penalties against auto companies. The agency’s annual vehicle safety budget is a puny $134 million. Unlike other federal regulators, the N.H.T.S.A. does not have its own research and test facility.

Since the National Traffic and Motor Vehicle Safety Act was enacted in 1966, the industry has blocked any meaningful provision for criminal penalties that would make company executives who concealed defects or decided not to recall dangerous vehicles subject to prison sentences. No single reform would change corporate behavior as much as this.

Only a complete overhaul of the agency’s culture will prevent future recalls, since automakers will always place sales and profits over safety and innovation. This should start with closing the revolving door, adopting criminal penalties and increasing funding. All auto companies should have an independent, government-certified safety ombudsman to investigate complaints from whistle-blowers and to report defects directly to the chief executive and the agency.

Above all, the agency’s leaders must have proven transportation safety expertise. They must demonstrate that they see auto companies as an industry to be regulated, rather than partners whose profits and sales must be protected at the public’s expense.

Clarence Ditlow is the executive director of the Center for Auto Safety. Ralph Nader is the author of “Unstoppable: The Emerging Left-Right Alliance to Dismantle the Corporate State.”

A version of this op-ed appears in print on October 29, 2014, on page A29 of the New York edition with the headline: Weak Oversight, Deadly Cars. Order Reprints|Today's Paper|Subscribe

Sunday, October 26, 2014

I posted this in early 2009. The problem of Toyota Sienna sticking door latches seemed to bring forward a lot of on-line complaints. Owners ALL felt it was a safety threat to the vehicle owner's family, particularly children. LOTS of Sienna sliding door handles broke due to the excessive force needed to open the sliding doors. Most of these sliding doors could not be opened from either the inside or outside.Toyota blamed vehicle owners for spilling sticky drinks and oiling the door track was advised by Toyota. The sticky drinks weren't the cause and oiling didn't correct the problem however.Did NHTSA investigate? There was a silent Technical Servoce Bulletin used for the most vocal vehicle owners. Were there any deaths or injuries as a result of this problem? ******************************************************************************It is interesting to not the recent increase in the number ofpostings about the TOYOTA STICKING DOOR LATCHES and/or LOCKSproblem. Apparently, Toyota has yet to issue a diagnostic/repairbulletin about this problem even though it has been around foryears! Isn't this willful neglect and cover-up of a SAFETY ISSUE?!?

I am the original poster about this problem as it occurred in mySienna as well. The sliding doors could not be opened by an adult,much less a child, from the inside of the van. The dealershipinsisted it was due to "spilled sticky drinks!" It seems that thishas been the corporate's expected dealership response as I've heardtoo-numerous-to-count Toyota vehicle owners recount the same storyabout their sticking door issue for the last several years.

I contested this lame excuse. Toyota replaced the locks and theproblem has only recurred intermittently since that time. Havingstuck sliding doors is a scary experience! Paint this picture inyour head for a moment---a Toyota Sienna has sticking door latches. Then, the sludge monster creeps in. The van overheats due to thethickened oil and possible oil plugs. The van experiences an ENGINEFIRE DUE TO ENGINE OIL SLUDGE (it IS happening!). Your passengers,including small children, can NOT get out of the burning van!

If you think it can't happen, think again. There have been numerousaccounts of spontaneous engine fires, particularly in the Sienna andCamry. Toyota never admitted that the engine oil sludge (see mypetition) is a problem and blamed the owners just as in the stickingdoor lock situation. The owners believe that the engine oil sludgeand sticking door latches are MANUFACUTURING DESIGN DEFECTS and thatToyota is unfairly shifting the blame to escape financialresponsibility.

In the meantime, there are also reports about faulty ABS (antilockbraking system) systems in these same vehicles. Notice that Toyotacontinues to claim that there aren't many recalls in its vehicles. Is this because there aren't any problems reported OR is becauseToyota has chosen to BLAME THE OWNER for the inherent performanceand/or safety problems?

You be the judge! Consider, however, the fact that through the lastdecade, key postings about safety issues in these vehicles have beeneliminated from the internet. I know because I have been part ofmany forums where these problems have been discussed at length. Myquestion is, does Toyota participate in programs aimed atmanipulating postings about its products in order to preservethe "Toyota Myth" about quality? Only those who have been trackingthe postings over the last several years would notice what ishappening, most likely. Certainly, the company admits that ittracks what is being said about it online. And...trust me...thereis no shortage of "corporate protectors" out there who activelycontest complaints made about Toyota products!

We all know that these are hard economic times. How is it thatToyota can get away with blaming the owners and forcing them to putup hundreds/thousands of dollars for repairs that should be coveredby the manufacturer???? The ENGINE OIL SLUDGE debacle proved thatToyota will dig in its heels to escape responsibility and continueto point the finger at its one-time loyal customers!!

SPEAK UP about the safety issues! Contact the NHTSA with a PETITIONLETTER TO INVESTIGATE A SAFETY ISSUE and involve your localpoliticians as well. Contact any/all consumer agencies out there(particularly the Center for Auto Safety) and insist on action beingtaken. By being a thorn in the side of the auto manufacturer, youwill ensure that the word gets out and the manufacturer mustrespond. Go with your gut---if you know the manufacturer is blowingsmoke, EXPOSE it!

About Me

I was the subject of an Automotive News article on May 13, 2002 regarding Toyota engine oil sludge. The title of the article was "Charlene's Web..." My efforts to network with similarly-affected vehicle owners online was highlighted. During that time, I was visited by Bruce C. Ertmann, then CEO of Customer Relations at Toyota. He flew out to speak with me. He also flew out to buy out a Highlander owner who had SLUDGE with just 12,000 miles on the odometer. I had hoped he would be open to hearing about the growing engine oil sludge problem in Toyota and Lexus vehicles. Alas, he was NOT interested in hearing about the thousands of other Toyota and Lexus owners who were coming forward to speak up about this engine-destroying condition. I tried to interest him in what the others were saying about the engine condition that was costing the owners thousands of dollars in repair when their engines had to be replaced. He told me the engine information was "proprietary"....you know, like the much-coveted information about Toyota's ETCS-i...and that he couldn't discuss that aspect. I felt he needed to know that upon OIL ANALYSIS, the engine oil was shown to be prematurely breaking down even with just 2,000 miles in the oil. I felt he needed to know that thousands (roughly 10,000 complaints in the Complaint Station under "Toyota" at the time) of other Toyota owners were going online to find answers. I wanted him to know that these vehicle owners were NOT happy to be BLAMED for improper maintenance and causing their own engine oil sludge. I couldn't help wondering WHY Mr. Ertmann traveled all that distance to visit with me...first at a local park I chose as a neutral location and then for nine hours at my local Toyota dealership in Fairfax, VA...IF he was not interested in hearing about all these seriously-impacted vehicle owners. WHY did he come that far then? Obviously, his mission was to intervene in my singular situation. He wasn't there to help the consumer-networked group. Perhaps he wanted to end my online presence in the engine oil sludge matter? Perhaps he was there for damage control? Perhaps he was there to help Toyota bury its head in the sand further? Perhaps he needed to keep up the corporate denial mode? Perhaps he didn't want to reveal the real reason Toyota and Lexus vehicles were FRYING the oil (yes...it looked just like goopy, burnt oil)? After all, WHY would a CEO of Customer Relations go to the trouble to single out a very online-vocal vehicle owner? I thought it was interesting that Mr. Ertmann, in addition to holding a business degree, holds an IT degree as well. His internet technology expertise is impressive! I wasn't so impressed, though, when while online in real-time via e-mail with Mr. Ertmann much later (because I guess I didn't shut up?), I experienced a strange computer intrusion which caused me to have, in effect, a computer crash. Yes, my internet security software program indicated lots of attempted malicious intrusion attempts previously, especially originating from California. BUT, that one intrusion put my computer out of commission at the time. So the big question is, does Toyota welcome information about a large group of vehicle owners experiencing major failures? Does it seek to uncover the real cause in these instances OR does it take an easier BLAME THE OWNER approach? Additionally, when Toyota comes out with "voluntary programs" or is forced to act after class action lawsuits, does it do so to the satisfaction of its customers? I sought to answer that question when I created the online Toyota Engine Oil Sludge petition long after Toyota claimed to have just 3200 affected sludge victims. The results of that petition...which gathered 3318 signatures despite DDoS on the site and petiton saboteurs...showed that Toyota was not honoring its public promises. It was STONEWALLING its loyal customers. Is that what it's doing in the sudden unintended acceleration debacle NOW? Is the Robert & Kathy Ruginis case just the tip of the iceberg? Have the voices of the victims not been yet heard publicly? Is there an urgent need to have public disclosure about an ETCS-i problem? Let's find out... Charlene McCarthy Blake ToyotaOwnersUniteforResolutionOnline.blogspot.com